Protection of Compilations and Databases after IceTV: Authorship, Originality and the Transformation of Australian Copyright Law

Abstract

In IceTV Pty Ltd v Nine Network Australia Pty Ltd, the High Court transformed Australian copyright law, by placing a new emphasis on the role of an author or authors in producing original works. The centrality now required to be given to authorship has focused attention on important subsidiary questions, which have yet to be satisfactorily resolved in the case law. These questions include: What is needed to establish that a work originates from an author? When will the use of computers in producing a work result in a denial of copyright on the basis that there is insufficient human authorship? And what conditions must be satisfied for multiple human contributors to qualify as joint authors? Resolving these issues is especially important in determining the extent to which the new Australian copyright law protects informational works, such as directories. In examining these issues, this article critically analyses the reasoning in IceTV and its progeny, concluding that a failure to sufficiently engage with Anglo-Australian precedent has created avoidable uncertainties and ambiguities in central legal doctrines of Australian copyright law. The article also identifies internal contradictions in the reasoning in the judgments in IceTV, which have further compromised the coherency of the law. The article concludes that greater consistency and coherency in Australian copyright law can only be achieved by frankly acknowledging both the extent to which IceTV departed from precedent and the flaws in the reasoning of the plurality judgments in that landmark case.